(영문) 대전지방법원 2011.10.12.선고 2011구합1964 판결

1. On April 15, 201, the Defendant’s disposition of restricting application for qualification examination for middle school against the Plaintiff is revoked.

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. The plaintiff was born on August 7, 2001 and on April 1, 2007 following the year in which the date of full five years of age belongs.

In accordance with the provisions of Article 14 of the Elementary and Secondary Education Act (hereinafter referred to as the "Act") and Article 28 and Article 29 of the Enforcement Decree of the same Act (hereinafter referred to as the "Enforcement Decree"), a person who was granted a grace period for one year (the duty to attend school from September 24, 2010 to September 24, 201) pursuant to the provisions of Article 28 and Article 29 of the Enforcement Decree of the same Act (hereinafter referred to as the "Enforcement Decree") from the head of the Dong-si Elementary and Secondary Education Act (the duty to attend school from September 24, 2010 to September 24, 201).

B. Based on Articles 10 and 14 of the Rules on the Examination of Admission Requirements for Middle Schools in Daejeon Metropolitan City (hereinafter “Rules on the Examination”) amended by the Educational Rules of the Daejeon Metropolitan City on May 12, 2004, the Defendant publicly announced the implementation plan of the first examination of middle school around March 25, 201 (hereinafter “the first examination of entrance”) around the year 201, and the approximate content is as follows: (a) the delivery and receipt period of the application on May 14, 201: (b) the Plaintiff was merely a person who is under the first examination of entrance to a special school on April 11, 201; (c) the Plaintiff was not under the first examination of entrance to the elementary school on April 11, 201; and (d) the Plaintiff was not under the first examination of entrance to the elementary school on March 1, 201; and (d) the Plaintiff was not under the control of the first examination of entrance to the elementary school on April 19, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 6-4, fact-finding reply to the Lee original elementary school, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion 1)

Of Article 14 of the Regulations on the Examination of this case, the part that limits the age of 12 or more years of age (hereinafter referred to as the "Rules of this case") is null and void for the following reasons. Thus, the disposition of this case based on this is unlawful and revoked. (A) The purpose of the Rules of the Examination of this case is to provide for matters necessary for the public notice of the examination pursuant to Article 96 (2) of the Enforcement Decree of the Act. However, in Article 43 of the Act, which is the upper law, and Article 96 of the Enforcement Decree of the Act, there is no explicit provision or delegation of the Rules of the Public Notice of the Examination of this case as to the limitation of the age of the public notice of the examination of this case, and there is no ground for

B) According to Article 5-2 of the Regulations on the Examination for Admission to High School (Ordinance of the Ministry of Education, Science and Technology, etc.), the application age of high school entrance examination is not restricted. The provision of this case limits the application of the same standard as 12 years of age, without distinguishing those who did not enter an elementary school with respect to the application age of entrance examination and those who were exempted from or postponed from the obligation to attend school after entering an elementary school. Further, pursuant to Article 13(1) of the Act, those who graduated from an elementary school normally after entering an elementary school in the year following the year in which the date on which they reach 6 years of age falls, may enter a middle school in the year following the year in which they reach 12 years of age. On the other hand, those who wish to enter a middle school after passing the examination for entrance examination for middle school after passing the examination for entrance examination for middle school without reasonable discrimination among those who did not reach 12 years of age at the time of entrance examination for middle school entrance examination for middle school in the year following the year in which they reach 12 years of entrance examination.

C) Persons subject to compulsory education are merely entitled to receive education pursuant to Article 31(1) of the Constitution and at least the obligation of them to receive elementary education and legal education is borne by their protectors pursuant to Article 31(2) of the Constitution. Ultimately, as a guardian performs the obligation to receive education, their children receive compulsory education as a result, and they do not have any obligation to receive elementary school education and legal education as a result, and they do not have any obligation to receive the Plaintiff. In addition, although the elementary school education system is basically realized through school education, the basic education system provides that the right to receive education is provided through lifelong education (Article 3) and the right to receive education according to their ability and aptitude (Article 9), school education as an educational system for realizing the right to receive education (Article 10), social education (Article 10), and social education (Article 10). Therefore, the obligation to attend school cannot be interpreted as a method of initial education, and the obligation to attend school can not be interpreted as an obligation to do so merely because they are against the obligation to receive elementary school education examination and examination of each case.

D) The instant provision also violates the regulatory statutoryism stipulated in Article 4 of the Framework Act on Administrative Regulation, and is also not recognized as the necessity of the regulation and the feasibility of the regulatory purpose, thereby violating the principle of regulation stipulated in Article 5 of the same Act.

2) Defendant’s assertion

Article 8 of the Framework Act on Education provides that "Compulsory education shall be elementary education for 6 years and secondary education for 3 years," and Article 12 (1) of the Act provides that "the State shall conduct compulsory education under Article 8 (1) of the Framework Act on Education, and shall take necessary measures, such as securing facilities therefor," while specifying specific ages. In light of the above provisions, "Compulsory education under Article 8 of the Framework Act on Education" is not only delivery of simple knowledge, but also personal education as a whole. Therefore, the essence of the compulsory education system should be examined by limiting the age of 12 years by promoting the normalization of elementary school education for children under 12 years. In addition, Article 12 (1) of the Act provides that "the State shall take necessary measures, such as securing facilities," and Article 13 of the Act provides that "Compulsory education under Article 8 of the Framework Act on Education shall be null and void if a person who has failed to complete elementary school education at the age of 16 years or less, and the provision of the Framework Act on Education shall not be established in accordance with the same Act.

B. Relevant statutes

As shown in the attached Form.

C. Determination

1) Issues arise (1) Whether there are grounds for restricting the age of application or not. The examination rules of this case aim at providing for matters necessary for the heavy examination and public notice pursuant to the consecutive delegation under Article 43(2) of the Act and Article 96(2) of the Enforcement Decree. (1) of the Act provide for the public notice of heavy examination, the subject of public notice, the method and degree of setting problems, the recognition of academic achievement for successful applicants, etc. Therefore, not only within the administrative body, but also within the scope delegated by the superior law, it constitutes a delegation order that can determine matters that can be prescribed by the original superior law within the scope delegated by the superior law. (2) However, delegation order can not be determined on a uniform basis when there is an individual delegation that specifically sets the scope in the law or superior order, but at least, the basic contents and scope of delegation order can be determined on the basis of delegation or higher order, and it can be determined on the form and public notice of delegation or public notice of the Act, which is 200 (200).

B) Article 31 (2) and (3) of the Constitution of the Republic of Korea provides that if an elementary school is eligible for compulsory education based on various provisions regarding compulsory education (1) that provides that all citizens shall have the obligation to receive at least the elementary school education and that provided by the Act, and Article 8 (1) of the Framework Act on Education provides that compulsory education shall be six years and those for three years. Meanwhile, Article 12 of the Framework Act on Education provides that "the State shall conduct compulsory education under Article 8 (1) of the Framework Act on Education." Article 13 provides that if an elementary school is deemed to have the capacity to receive education, its elementary school shall not be deemed to have the capacity to receive education at least six years, it shall be deemed to have the capacity to receive education at least six years, it shall be deemed that the elementary school will have the capacity to receive education at least six years, it shall be deemed that the elementary school will have the capacity to receive education at least six years, and that the elementary school will have the capacity to provide its children and children to the end of February of the following year.

(3) As a result, Article 96(1)1 of the Enforcement Decree provides that the method of recognizing that the graduates of elementary schools have educational achievement or higher than that of all subjects is one of the methods of recognizing that they have educational achievement. Under the delegation of Article 96(2) of the Enforcement Decree, the mid-to-date examination and announcement in Articles 11, 12, and 17 of the Examination Regulations, which were enacted pursuant to delegation of Article 96(2) of the Enforcement Decree, shall be an objective written examination to the extent that the knowledge of the degree of graduation and the ability to apply it can be measured. The announcement subjects shall be Korean language, social studies, studies, music, art, room, and English, and the selection subjects shall be 60 points out of 100 points in each subject and the standard of passing the announcement shall be at least an average of 60 points in all subjects. Accordingly, the mid-to-date examination and announcement shall be understood as an applicant of the above system of secondary education to the extent that it is reasonable to have an opportunity to enter a school which is an elementary school graduate.

Ultimately, since the purpose of the mid-to-date system is to verify the academic background to enter middle schools in charge of secondary education as a means of realizing compulsory education, it cannot be expected that the rules of this case for the purpose of prescribing necessary matters concerning compulsory education, that is, the ability to study at middle schools to verify the academic background, that is, the compulsory education period as a constituent of compulsory education, the age of compulsory education, and the normalization of compulsory education, should not be prescribed. (4) As such, school education has the meaning as a means of realizing the principle of compulsory education, and cannot be deemed as the same concept as compulsory education. Accordingly, the mid-to-date system is a system for verifying the "educational background as a qualification for receiving school education", and therefore, it can be viewed that the compulsory education period, the age of education, and the normalization of compulsory education should not be defined in the rules of this case. In light of the above, it is reasonable to deem that the regulations of this case concerning compulsory education should not be subject to the limitation of the age of examination.

C) Whether or not to allow attendance at an elementary school may be based on Article 13 of the Act (1) and (3) if a person who fails to complete an elementary school curriculum at the age of 12 or more due to the beginning of the school year; (4) if such person is eligible to take an examination of school attendance at an elementary school on the premise that he/she would have no capacity to apply for an examination of his/her school attendance at an elementary school during the fourth year following the year in which the date on which he/she reaches six years of age falls, he/she would have to attend an elementary school until the end of February of the year in which the date on which he/she reaches the age of 12 falls. However, if such person fails to attend an elementary school on the condition that he/she would have no capacity to apply for an examination of his/her school attendance at an elementary school on the condition that he/she would have no capacity to apply for an examination of his/her school attendance at an elementary school on the condition that he/she would have no capacity to attend an elementary school on the following third year.

D) Sub-decisions

Ultimately, it is reasonable to deem that the basic education law, which is the superior law of the regulations on the examination public notice of this case, and the Enforcement Decree thereof, cannot be predicted. Accordingly, the provision of this case is beyond the delegation scope of higher law, and it is an invalid provision without any basis. The defendant is, in principle, required to attend and attend an elementary school. Thus, it is necessary to restrict the application age like the provision of this case for the normalization of elementary school education. If the eligibility for the examination public notice of middle school entry is not limited on the basis of age, it is necessary to restrict the eligibility for the examination of middle school entrance, it is likely that the provision of this case may be the most appropriate method to prevent such abuse. Thus, it is argued to the effect that the defendant's argument is reasonable.

(3) According to the principle that the period of school attendance at an elementary school may be exceptionally exempted or postponed by the head of the school where there are inevitable reasons such as the outbreak of diseases under Article 14 of the Act, and each of the provisions of Article 28, the period of school attendance at the school may be sufficiently presented for the reasons that the number of children may be exempted from the school attendance at the school for the same time as those of those who are not the school, and the period of school attendance at the school may vary depending on the premise that the number of children may be exempted from the school attendance at the school for the same time as those of those who are the first day of the year. According to the provisions of this case, the period of school attendance at the school for the first day of the year in which the number of children may be exempted from the school attendance at the school may be counted for the same time as those of the first day of the year in which they may be exempted from the school attendance at the school, whichever are the first day of the year in which they may be exempted from the school attendance at the school, and according to the provisions of this case.

According to the results of the inquiry and reply by the head of the Leewon-won's Lee In-bok school, the method of uniformly limiting the age for applying for the public notice of entrance examination solely on the ground that there is a concern that there is a large number of students who want to enter a school early in the school of higher grade without omitting the elementary school process, in light of the following: (a) the Plaintiff applied for postponement by recording that the Plaintiff applied for postponement on the grounds of personal circumstances without stating the specific deferment situation; (b) but (c) the fact that the postponement was decided on September 27, 2010, which was the date of application for postponement from September 24, 2010.

Ultimately, the part related to the above judgment of this court among the plaintiff's assertion is reasonable, and since the provision of this case is null and void because there is no ground, the disposition of this case, which is based on the provision of this case, null and void, without any need to further examine the remainder of the plaintiff's assertion

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.